From Multiple Legal Cultures to One Legal Culture? Thinking About Culture, Tradition and Identity in European Private Law Development

Author:Stephanie Law
Position:Postdoctoral Research Fellow in Law, Faculty of Law, McGill University, Montréal (Canada)
Stephanie Law, ‘From Multiple Legal Cultures to One Legal Culture? Thinking
About Culture, Tradition and Identity in European Private Law Development’ (2015)
31(81) Utrecht Journal of International and European Law 68, DOI: http://dx.doi.
From Multiple Legal Cultures to One Legal Culture?
Thinking About Culture, Tradition and Identity in
European Private Law Development
Stephanie Law*
This paper begins by briey outlining private law’s evolution alongside the emergence of the
Nation States; it then aims to set out the mutual inuence of these concepts on national cul-
ture, tradition and identity in order to highlight the signicance of the political, economic and
legal as well as social and cultural contexts in which the processes of integration and Europeani-
sation occur. Against this background, the scope for European private law to emerge as a plural,
multi-level construct and a dynamic endeavour is recognised. Building on this analysis of the
signicance of the diversity and commonality of cultures, traditions and identities in national
private law development, institutionalised at the Union level in the principle of
unitas in diver-
, the paper explores the need for a single, common European notion of culture, tradition
or identity. This examination is undertaken with reference to an example, namely the evolution
of the concept of consumer, from its national foundations to its engagement in Union legisla-
tion and CJEU jurisprudence. Drawing conclusions as to the need for such a common, European
concept, the paper advances a plea for the recognition of a shift in the perspective of legal
development, to one which acknowledges the dynamic evolution of private law within a pluralist,
multi-level regulatory construct.
Keywords: European law; Private law; Consumer law; Nation States; Legal culture and identity
I. Introduction
The paper firstly outlines the emergence of the Nation State and highlights its existence at the core of pri-
vate law development. Thereafter, it explores the intertwining roles of the State in law-making processes
and law in state-making, making reference to codification as the long-dominant mechanism of private
law development. This outline underpins the analysis of the mutual influence of the concepts of State,
culture and tradition to contemporary private law development and, in particular, the Europeanisation
of private law.
II. The Circularity of State-Making and the Development of Private Law:
Recalling the Signicance of Culture, Tradition and Identity
A. The Nation State at the Core of Private Law Development
In respect of private law in particular, it is pertinent to begin with the ius commune. This body of law – emerging
from the evolution of legal thought of the late 11th and early 12th centuries, following the rediscovery of the
Corpus Juris Civilis – continues to influence our thinking about its contemporary development. Bologna,
boasting the first university,1 reigned as the centre of ‘transnational’ legal education;2 lawyers from diverse
geographic areas came to study there and contributed to knowledge sharing (particularly of legal reasoning
skills, in the styles of the Glossators and Commentators), and facilitated its dissemination as they returned
* Postdoctoral Research Fellow in Law, Faculty of Law, McGill University, Montréal (Canada).
Merryman, The Civil Law Tradition (2nd edn, Stanford University Press 1985) 9.
Peter G Stein, Roman Law in European History (CUP 2005) 53–54.
Law 69
to their native legal orders.3 The authority attached to this education and the body of law that emerged (of
common legal language and style of thought), together with its influence across much of Europe, provided
the foundations for the ius commune’s development.4 This reading of the historical significance of the ius
commune continues to generate support for the a new common body of law particularly at the European
level5 and moreover, underpins assertions that ‘law beyond the state’ is really nothing new but reflects exist-
ing phenomena including, e.g. the lex mercatoria.
The Nation State may be understood as a relatively recent (and arguably, relatively short-lived)6 pheno-
menon, having only emerged in the 28th and 19th centuries; indeed, ‘proto-states’ (including city and
multi-ethnic states) existed prior. The emergence of the state-nation from the city-state followed the
demise of the Holy Roman Empire and the practical application of Roman law. Yet, Roman law remained
significant, having been ‘received’ in certain legal orders (predominantly civil) via the ius commune, mix-
ing with local laws, including canon and feudal law. As Merryman notes, in some cases this process of
reception was ‘formal’, such that Roman law norms became a binding part of domestic law as a whole,
while in others, it was informal and its influence was realised per its ‘intellectual superiority’, predomi-
nantly via education.7
Thereafter, nationalistic tendencies led to the creation of territorial borders shaping what was to emerge as
the Nation State. This process occurred in different ways in different geographical areas, linked to the degree
of unification, nationalism and so forth. Local law already existed within these spaces, and its entrench-
ment as part of national law within territorial confines, contributed to the Nation State’s establishment.
The Nation State, a two-fold concept – coinciding, its geopolitical dimension is reflected in the territorially-
defined notion of State, and its cultural or ethnic8 dimension in the notion of nation9 – came to signify a
jurisdiction delineated by national borders within the territory of which the State, by virtue of the notion of
sovereignty, has the authority to exercise exclusive control over the engagement and enforcement of power.
A circular reasoning exists to explain these processes, particularly for private law, concerning private law’s
‘state-making’ role10 and state instrumentalism.11
This can be further explored with reference to codification. Alongside the emergence of the Nation State,
the 19th century saw the emergence of the majority of the codification movements across parts of the conti-
nent and a wave of successful endeavours in certain European legal orders.12 The foundations of codification
differed and continue to diverge across the national systems. In France, these efforts were founded in the
advancement of the Nation State, alongside its body of private law. The 1804 Code civil therefore constituted
not only an important dimension of Napoleon’s state-making process, but also operated to entrench the
relationship between the State and private law13 via the promotion of private activities supported by private
law principles (e.g. individual freedom and private property). In Germany, even if we consider the Prussian
ALR as ‘predating’ the State, the codification process must be considered as a special case, as its civil code,
the BGB, was drafted several decades after unification.14
Stein (n 2) 53–54; Merryman (n 1) 9.
Merryman (n 1) 9.
Reinhard Zimmerman, ‘Savigny’s Legacy: Legal History, Comparative Law and the Emergence of a European Legal Science’ (1996)
112 LQR 576.
In the EU context, the focus of this paper, the Union regime has been described as a ‘post-national constellation’ (originally
expressed by Jürgen Habermas, Die postnationale Konstellation und die Zukunft der Demokratie (Grin Verlag 2003)), existing in a
‘post-democratic era’, Jürgen Habermas, ‘Europe’s Post-Democratic Era’, The Guardian, (London, 10 November 2011)> accessed 19 September 2014.
Merryman (n 1) 9.
In reality, these terms should not be mixed; for the purposes of brevity, the distinctions are not explored.
Jayantha Dhanapala, ‘Globalization and the Nation State’ (University of Colorado at Boulder, Colorado, 7 March 2001)> accessed: 14 April 2012.
10 See Caruso who refers to ‘State-making’ (development of post-national institutions) and state-making (re the nation state); Daniela
Caruso, ‘Private Law and State-Making in the Age of Globalisation’ (2006) 39 NYU.J.Int.Law.Pol. 1.
11 Ralf Michaels and Nils Jansen, ‘Private Law Beyond the State? Europeanization, Globalization, Privatization’ (2006) 54 AJCL 843;
furthermore, states could utilise law to satisfy their goals (the determination of which also shaped private law): Thomas Wil-
helmsson, ‘Varieties of Welfarism in Contract Law’ (2004) 10 ELJ 712.
12 Of course, the 19th century cannot be said to be the birth moment of codification; indeed, the Prussian ALR was enacted at the end
of the 18th century, in 1794 – so the codification movement is older.
13 James Gordley, ‘Myths of the French Civil Code’ (1994) 42 AJCL 459.
14 Christian Joerges, ‘The Science of Private Law and the Nation State’ in Francis Snyder (ed), The Europeanisation of Law – The Legal
Effects of European Integration (Hart 2000) 47–82, 47–48.
From Multiple Legal Cultures to One Legal Culture? Thinking About Culture,
Tradition and Identity in European Private Law Development
Delving deeper into private law development, the emergence of the unified Nation State and the
entrenchment of national law brought to the fore the significance of coherence and systemisation in law,
one amongst many of the objectives of codification (and also, of the common law). Just as the foundations
of codification diverged across the States, so too did the bases of coherence. Indeed, the significance of unity
and coherence in the German legal system derived from the dominance of Pandectism, which embraced ‘the
ethics of autonomy with which Kant endowed the renaissant legal science around 1800’;15 this derived not
only from codification processes itself but from the 19th century evolution of German legal scholarship, of
which the BGB formed part.
Similarly, codification’s impact has been broad. It has facilitated the categorisation of disputes, gen-
erating and promoting the dissemination of legal knowledge and ultimately engendering greater pre-
dictability and certainty in dispute resolution.16 The push towards coherence was facilitated by the
characterisation of the codes’ rules – particularly those of a private law nature – as apolitical and techni-
cal. This point can be clarified; it is not to argue that private law is entirely apolitical. Private law, as, it
could be argued, all law, is inherently political; its drafting, interpretation and application often require
political choices. Rather, this statement builds on the understanding of Savigny, to highlight the idea that
private law existed prior to the ‘intervention of the state’. Thus, it could be distinguished from public
law, and as a result, what is political. This understanding has also been engaged to reinforce the idea of
a public-private divide. The notion of technicality derives from the characterisation of conflicts of laws,
not as ‘conflicts among sovereigns’ but as ‘technical questions of applicability’.17 The application of these
rules, particularly private conflict rules, was similarly conceived as technical. However it becomes increas-
ingly unclear that private law norms can satisfactorily be characterised as such, a consideration explored
further below.18
Moreover, codification has also had the effect of indirectly emphasising existing divergences (in substance
and procedure), within and between national legal systems. As the emergence of the ‘era of codification’
occurred contemporaneously to that of the Nation State, the strength of the civil code throughout the
20th century has provided the key basis for the maintenance of these divergences within the confines of each
State and moreover, for the different conceptualisations and applications of (private) law at the national
level. Furthermore, while it was initially anticipated that the civil code would provide a coherent, systema-
tised and comprehensive account of the law,19 applicable within each State and contributing to its identifica-
tion, it is questionable whether this prospect has been realised in light of their operation and refinement.20
Yet, this concern underpins legal development generally: our understanding of the aspirations and out-
comes of codification depends on the significance attributed to the potentially unrestrained, ‘exaggerated
and unrealistic expectations’21 of the postmodern context.22
B. The Nation State and its Culture, Tradition and Identity in Private Law
Having introduced the circularity that characterises the connection between state-making and private
law development, it is pertinent to introduce the significance of national culture, tradition and identity
to both processes. Different attributes of general culture, legal culture, as a localised understanding,
tradition and identity have been invoked in state-building processes. These concepts are necessarily inter-
related and a rguably circular; identity derives from the shared culture within the Nation State while
15 Franz Wieacker, A History of Private Law in Europe with Particular Reference to Germany (T Weir trans., Clarendon Press 1995)
341–349 and 484.
16 Caruso highlights, that via this reference to ‘organising categories . . . codification allowed the incipient state to perform an allegedly
essential function of government’; Caruso (n 10) 25.
17 For an explanation in greater detail, see R Michaels, ‘Post-Critical Private International Law : From Politics to Technique’ in Horatia
M Watt and Diego PF Arroyo (eds), Private International Law and Global Governance (OUP 2014) 54–67, 61.
18 Concerns were initially advanced over a decade ago; Study Group, ‘Social Justice in European Contract Law: a Manifesto’ (2004) 10
ELJ 653.
19 The idea that national legislation is authoritative ‘rationae imperii’, ‘quod principi placuit, legis habet vigorem’ (Ulpian, D.I.4.I., pr.);
Robert Alexy and others, Begriff und Geltung des Rechts (Karl 2002) 142 et seq.
20 See arguments cited within Reinhard Zimmermann, ‘Codification: History and Present Significance of an Idea’ (1995) 3 ERPL 95,
103–105. Zimmermann, referring to Eastern European codification, highlights the continuing relevance of codification, appertain-
ing to the understanding of law’s ‘systematic whole’.
21 ibid 109–110.
22 This notion of ‘potentially unrestrained’ becomes relevant if we engage what is often conceived as an overarching understanding
that codification should be all encompassing.
Law 71
‘nationhood, especially as conceived by the nationalists of early-nineteenth-century Europe, was explicitly
This interdependence has been highlighted in divergent political, socio-economic and cultural contexts
across the national systems.24 In terms of legal development, Montesquieu understood law as the product
of the spirit of the people, the cultural and political environment,25 while Savigny highlighted the signifi-
cance of the Volksgeist.26 Characteristics identifiable as common within the delineated space of the Nation
State were invoked as dimensions of national culture. These dimensions were then engaged, refined and
concretised through codification (the civil code itself having ‘cultural status’)27 or through practice (in the
English courts), consolidating the identity and power of the nation, thereby lending legitimacy and promot-
ing coherence in the identifiable, bounded space.28
This circularity begs a number of questions, to which the paper returns in the discussion of European cul-
ture and identity below. For Hardt and Negri, identity is constructed from the grouping together of people
on the basis of race or class; divergences between groups existing within a particular space, i.e. the territory
of the Nation State, are eliminated and the identity created is deemed to be ‘representative’ of the whole as
‘a hegemonic group, race or class’.29 This identity, attributed to a particular Nation State, distinguishes ‘us’
from ‘them’, allowing for boundaries to be drawn and, on its reproduction across national spaces, for distinct
national identities. This understanding of identity, as it is conceived with regard to otherness (that is, as the
opposite of same), is necessarily defined in terms of what constitutes the self, which within the context of
the State, reflects the collective unit as opposed to the individual.
Thus, identity derives from shared culture, while being in itself a cultural product. This begs a primary
fundamental question of structure: what are the component parts of shared culture? Arendt identifies
shared culture as that ‘which makes it bearable to live with other people, strangers forever, in the same
world, and makes it possible for them to live with us’.30 For Arendt, while it is necessary to have more
than mere knowledge of the ‘other’ and more than ‘direct experience’, the exact criteria remain unclear.31
It seems that there is a need for active engagement; as Eaglesham has noted, ‘[p]eople who belong to the
same place, profession or generation do not thereby form a culture; they do so only when they begin to
share . . . ’.32 The second question is contextual and temporal: when is a shared culture recognised as such?
Arguably, that which is shared is only identifiable in context and at a certain period in time. That is to say,
what ties people together is not all-encompassing or perpetual. Indeed, as Habermas has asserted ‘[o]ld
loyalties fade, new loyalties develop, traditions change and nations, like all other comparable referents, are
not natural givens either’.33
The emergence of an identity deriving from national culture can be tied to the evolution of the concept
of the consumer, a key concept of both national and European private law. Indeed, it is the identification of
a party as a consumer that gives rise to the application of consumer protection norms. Thus, the concept,
which emerged initially within the context of the Nation State34 and as such, encompasses determinations
of national and local preference, is an operative one. The consumer identity came to reflect a conceptualisa-
tion embedded within and shaped by general and consumer culture and distinct to each national system. As
such, the scope for its transfer beyond the Nation State, i.e. to the European level for the purposes of private
law development, necessarily brings to the fore the legal and cultural as well as the economic, political and
social diversities across the Member States. The analysis of the foundations and evolution of the identity of
23 Michael Herzfeld, Cultural Intimacy: Social Poetics in the Nation-State (2nd edn, Routledge 2005) 75.
24 Helge Dedek, ‘Law as Culture/Rights as Culture: Some Historical Thoughts on the ‘Western’ Legal Tradition’, Paper Presented at
Conference on European Legal Culture, University of Oxford, (16 December 2011) (on file with author).
25 Charles de Secondat, Baron de Montesquieu, De l’esprit des lois, Livre IX, Chapitre VI, (Barrillot 1750).
26 Friedrich Carl von Savigny, ‘Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft’ in Hans Hattenhauer (ed), Thibaut
und Savigny: Ihre programmatischen Schrifften (F Vahlen 1973) 95 et seq.
27 Merryman (n 1) 31–32.
28 Dennis Patterson and others, ‘Statecraft, the Market State and the Development of European Legal Culture’ EUI Working Paper
2010/10, 4.
29 Michael Hardt and Antonio Negri, Empire (HUP 2000) 103–104.
30 Hannah Arendt, ‘Understanding and Politics (The Difficulties in Understanding)’ in Hannah Arendt, Essays in Understanding, 1930–
1954: Formation, Exile and Totalitarianism (Schocken Books 1994) 307–327.
31 Paul S Berman, Global Legal Pluralism: A Jurisprudence of Law Beyond Borders (CUP 2012) 144.
32 Terry Eagleton, The Idea of Culture (Blackwell 2000) 37.
33 Habermas, ‘Europe’s Post-Democratic Era’ (n 6).
34 Michelle Everson, ‘Legal Constructions of the Consumer’ in F. Trentmann (ed), The Making of the Consumer: Knowledge, Power and
Identity in the Modern World (Berg 2006) 99–121.
From Multiple Legal Cultures to One Legal Culture? Thinking About Culture,
Tradition and Identity in European Private Law Development
the consumer in the cultures and traditions of the Nation State allows for the foregoing discussion to be
Within many national systems, the liberal conception of both the State and market, alongside the limited
appreciation of law’s role in society, provided little leeway for the recognition of divergent standards of
protection for contracting parties. The role of law and its influence on society can be considered first, via
two broad, while not necessary representative, views on this relationship. The first, elaborating on scholar-
ship from Durkheim to Luhmann,35 posits that law plays a key role in resolving problems associated with
complexity in society; while society is deemed to be ‘without centre or apex’,36 the State’s role in society
remains ‘historically embedded and contingent’. Thus law provides a framework, established at the level
of society and reflecting its changes, on the basis of which behaviour is shaped, relevant to the context in
which individuals are acting.37 The second approach reflects a cynicism as regards such an understanding
of law, considering that it operates in the background of society, without playing a prominent role in the
organisation or living of life.38
As a result of a degree, though not necessarily entire, adherence to the latter understanding, particular con-
tracting parties were not deemed to require specific protection, providing no basis for the characterisation
of an individual as a ‘consumer’. The shift in paradigm from status to contract39 entrenched this understand-
ing in contract law. Moreover, the strict adherence to the ideal of contractual equality, enshrined in con-
tract’s formal understanding (contrasted with its later materialisation),40 provided little foundation for the
categorisation of contracting parties into different groups that might have to be treated differently should a
dispute arise. Inherent in this understanding is the conceptualisation of private law as a technical, apolitical
body of law with little or no social function. As contract’s materialisation emerged, mechanisms for the pro-
tection of contracting parties also evolved in the national legal orders, notwithstanding that now consumer
protection is often understood as predominantly European; against this background, nationally-embedded
consumer cultures, and thus potentially identities, emerged existing alongside ‘notions of national citizen-
ship’, within and across the national markets, reflecting the similarities and differences therein. Indeed, it
was understood that ‘national regulation and law would dictate the mode of national production, the extent
and character of goods and services on offer within that market, as well as the terms and conditions under
which such goods and services might or might not be purchased’.41
Thus, due to its emergence in context, the formal conceptualisation of consumer might differ across
national legal systems; moreover, empirical research indicates that ‘national cultural variation’42
impacts consumer culture generally, and consumer behaviour, including responses to information43 and
35 That is, in terms of the concept of functional differentiation: the demand for law from the social, Émile Durkheim, The Division of
Labor in Society (WD Halls trans., Free Press 1984); ‘What is, then, the practical cause of the genesis of law? It is, replies the author,
the need to guarantee the conditions of existence of society’: Émile Durkheim, ‘La science positive de la morale en Allemagne’,
(1887) 24 Extrait de la Revue Philosophique, 33–142; 275–284 (English translation, ‘Jurists?’ (1986) 15 Economy and Society 346,
348–349); Niklas Luhmann, Die Gesellschaft der Gesellschaft (Suhrkamp Verlag 1997).
36 Niklas Luhmann, Political Theory in the Welfare State (J Bednarz Jr trans., de Gruyter 1990).
37 Niklas Luhmann, A Sociological Theory of Law (Routledge 1985) 105; Peer Zumbansen, ‘Transnational Comparative Theory and
Practice’, Osgoode Hall Working Paper 1–2012, 12.
38 In the context of business contract relations, see Stewart Macauley, ‘Non-Contractual Relations in Business’ (1963) 28 Am.Soc.Rev. 55.
39 Henry S Maine, ‘From Status to Contract’ in Ancient Law (Murray 1861).
40 Materialisation is understood broadly to reflect the drafting of norms for a particular purpose. Its trends were discussed in Weber’s
analysis of legal systems Max Weber, Economic and Sociology, Vol.II (G Roth and C Wittig edn, Berkeley Press 1969); notwithstand-
ing, the development of the discourse, between the formalists, promoting the maintenance of the autonomy of law, in respect of
political and social concerns, and those promoting an understanding of law, incorporating concerns as to social justice arising in
modern society, really came to the fore with critical legal scholarship.
41 Michelle Everson, ‘Legal Constructions of the Consumer’ in Frank Trentmann (ed), The Making of the Consumer: Knowledge, Power
and Identity in the Modern World (Berg 2006) 99–121, 107.
42 Often in cross-cultural analysis, Hofstede’s dimensions of national culture are employed: a) power distance (the manner in which
inequality is dealt with); b) uncertainty avoidance (how uncertainty is dealt with); c) individualism and collectivism (the individual/
collective relationship); d) masculinity and femininity and e) long-term versus short-term orientation: Geert Hofstede, Culture’s
Consequences: Comparing Values, Behaviours, Institutions and Organizations Across Nations (2nd edn, Sage Publications 2001). It
has also been recognised that this framework for analysis might be useful in the European context: Marieke de Mooij, Consumer
Behaviour and Culture: Consequences for Global Marketing and Advertising (Sage Publications 2004) 36.
43 The CJEU has referred to the definition of the consumer per ‘social, cultural and linguistic factors’. Wilhelmsson has argued for
greater consideration of the cultural in particular: Thomas Wilhelmsson, ‘The European Average Consumer – a Legal Fiction?’ in
Thomas Wilhelmsson et al (eds), Private Law and the Many Cultures of Europe (Kluwer 2007) 243–268.
Law 73
communications, ability to trust and exercise of rationality in decision-making processes.44 In this light,
the notion that ‘ . . . the consumer role model of a particular legal system can be seen as a mirror of this
society’s vision of its market and social system’45 comes to the fore. As this identity is engaged and refined
at both the national and European levels, its foundations and the factors shaping it in both contexts, are
This understanding complements the outline above, pertaining to private law’s foundations in the
Nation State, and its emergence alongside the construction of national culture, tradition and identity. It
suggests that legal development is not merely legal but also social, economic, political and cultural and
that as this is true at the national level, it is also true beyond the State.46 Moreover, as European integra-
tion and the Europeanisation of private law is advanced within a multi-level, pluralist construct, it must
be understood that legal institutions operate within a context defined within and beyond the territorial
boundaries of the State. Both reflections suggest a need to engage the ‘deeply political, sociological and
cultural dimensions of law’47 embedded within the Member States and Union regime as Europeanisation
continues, increasingly in areas previously falling predominantly within the jurisdiction of the national
legal order.
III. The Europeanisation of Private Law in a Pluralist, Multi-Level Space: A
Plea for An Evolving Paradigm of Legal Development
This section elaborates on the normative and conceptual space within which national and European
private laws evolve. In particular, it sets out the foundations of the pluralist perspective and unpins
the understanding of European private law as a multi-level construct. While the existence of pluralism
is an empirical determination, it has normative effects, shaping the structure of the relevant regime
and its interaction with others. Particularly, related to the multi-level characterisation, it advances that
authority is not centralised in a single source but is found in diverse spaces. The concept of multi-level
governance derives from the recognition – initially within the social sciences48 – that policy planning
and governance often occurs at different levels within the same given space. Consequently, states usu-
ally cannot establish or promote their own policy simply per their sovereign state authority but must
rather engage in cooperative efforts. This requires the coordination of the actors engaged, including leg-
islatures, courts, agencies, regulators, civil society bodies, scholars and increasingly, private individuals.
Building on this outline, this section introduces the shifting conceptualisations of private law, a result
of its Europeanisation.
A. The Foundations and Challenges of the Pluralist, Multi-Level Perspective of
Legal pluralism broadly reflects the existence of more than one normative regime within a territorially-
defined space;49 the scope for different degrees of plurality derives from the rejection of a strict dichot-
omy of centralism and pluralism.50 It can be identified in the multiplicity of local and regional normative
orders in a given space, as well as, in the course of the last three centuries, in the interaction between
‘Western’ and ‘indigenous’ normative systems, and particularly, in colonial and post-colonial spaces.
The imposition of the external (colonising) system on the existing (indigenous) ‘legal’ system generated
interactions and interdependences, which in many contexts, continue to this day. Empirically, plurality
44 Thomas Wilhelmsson, ‘Harmonizing Unfair Commercial Practices Law: The Cultural and Social Dimensions’ (2006) 44 Os.Hall.L.J.
461. Wilhelmsson also references Michael Solomon, Gary Bamossy and Søren Askegaard (eds), Consumer Behaviour, A European
Perspective (Prentice Hall 1999), noting also the global perspective.
45 Brigitta Lurger, ‘Old and New Insights for the Protection of Consumers in European Private Law in the Wake of the Global Economic
Crisis’ in Roger Brownsword and others (eds), The Foundations of European Private Law (Hart 2011) 89–113, 106.
46 The discussion in international constitutionalism concerning the continuing significance of the state, its characters and constitu-
ent parts, is relevant but cannot be considered in depth.
47 Peer Zumbansen, ‘The Future of Legal Theory’ (2010) 6 CLPE Research Paper Series 3, 8.
48 Devised by Gary Marks, ‘Structural Policy in the European Community’ in Alberta Sbragia (ed), Europolitics, Institutions and Policy-
making in the ‘New’ European Community (The Brookings Institution 1992) 191–225; Gary Marks, ‘Structural Policy and Multi-level
Governance in the EC’ in Alan Cafurny and Glenda Rosenthal (eds), The State of the European Community: The Maastricht Debate
and Beyond (Lynne Rienner Publications 1993) 391–411.
49 Margaret Davies, ‘Legal Pluralism’ in Peter Cane and Herbert M. Kritzer (eds), The Oxford Handbook of Empirical Legal Research (OUP
2010) 805–827, 805.
50 Arguably reflected in an understanding of state versus non-state: Boaventura de Sousa Santos, Toward a New Legal Common Sense
(2nd edn, Butterworths 2002) 156.
From Multiple Legal Cultures to One Legal Culture? Thinking About Culture,
Tradition and Identity in European Private Law Development
is identifiable within the European space, reflected in multiple legal orders, cultures and traditions,51
sources of law (whether national, supranational, transnational, public, private or a combination thereof),
dispute resolution bodies52 and actors.53 It is often considered that, in light of these historical interac-
tions, the absence of plurality reflects a ‘myth, an ideal, a claim, an illusion’;54 on this basis, plural-
ism can arguably be utilised as a characteristic of any context in which there are multiple normative
The challenges in conceptualising the European space as pluralist are various.56 One danger is reflected
in the argument that the ‘pluralism of Europe and its cultures have become a shield to protect nation-
alistic thinking’,57 as opposed to facilitating the decline of political or legal nationalism.58 A second dif-
ficulty derives from the strict adherence to a positivist appreciation of legal development and of the role
of state-based institutions in law making, application and enforcement. Yet, increasingly, it becomes clear
that law does emerge beyond the State, including via self-regulation, co-regulation, the development of
codes of conduct, and the standardisation of contracts, coming to the fore against the background of the
declining role of the State.59 Normative sources are identifiable at the national and European levels, as
well as in ‘private global norm-production’,60 including: ‘non-legislative codification’61 (legal rules, values
and principles drafted by academics and other bodies acting ‘in pursuit of what they perceive as the com-
mon good’);62 the ‘old’ and ‘new’ lex mercatoria (supplemented by the lex laboris and lex sportiva); and
the self-and co-regulatory standards of international organisations and multi-national corporations63 (e.g.
the WTO, World Bank and the IMF64). While the State retains its significance in the EU context,65 these
dimensions of legal development must be understood to define an emerging global plurality (of which
the European is part).66
Of course, legal pluralism is by no means unproblematic; not only does it putatively generate concerns of
fragmentation and incoherence, but also, the development of a plausible theory for the organisation of legal
pluralism has been slow to emerge.67 Fragmentation comes to the fore time and again across legal spheres
51 Gunther Teubner, ‘Global Bukowina: Legal Pluralism in the World Society’ in Gunther Teubner (ed), Global Law Without a State
(Dartmouth 1997) 3–28.
52 de Sousa Santos (n 50) 200 et seq.
53 Roderick A McDonald and David Sandomierski, ‘Against Nomopolies’ (2006) 57 North.Ireland.Leg.Q. 610, 614.
54 John Griffiths, ‘What is Legal Pluralism?’ (1986) 24 Journal of Legal Pluralism 1, 4.
55 Sally E Merry, ‘Legal Pluralism’ (1988) 22 Law and Society Review 869, 873–874; Merry distinguishes the different contexts in
which legal pluralism arises, referencing the challenges and different scholarly foundations. Thus, pluralism might also arise within
national – and it is submitted – postnational contexts. The national contexts typically explored include Australia, New Zealand and
56 Brian Tamanaha, ‘Understanding Legal Pluralism: Past to Present, Local to Global’ (2008) 30 Syd.Law.Rev. 375, 377–386, examining
legal pluralism in medieval Europe and in respect of colonisation.
57 Patterson and others (n 28) 1.
58 In the context of the economic crisis, in particular, increasing nationalist tendencies can be identified, not only in law but else-
where. For example, consider the surge of Euroscepticism in the UK in recent months, and in those countries affected directly by
austerity measures imposed in respect of the effect of the crisis, particularly in Greece.
59 ‘Already at first glance, it becomes clear that many examples of a ‘global law without a state’ do not in fact contain a flat-out rejec-
tion of state-based official law’: Gralf-Peter Calliess and Peer Zumbansen, Rough Consensus and Running Code: A Theory of Trans-
national Private Law (Hart 2010) 19 (footnotes omitted).
60 For the use of this term, see Gunther Teubner, ‘Breaking Frames: The Global Interplay of Legal and Social Systems’ (1997) 45 AJCL
149, 157.
61 Nils Jansen, The Making of Legal Authority: Non-Legislative Codications in Historical and Comparative Perspective (OUP 2010) 7,
instead of applying the term ‘private actor’ to describe, eg, academics.
62 For example, of UNDROIT, the Lando Commission, and the Acquis Group (Acquis Group (eds), Contract I: Pre-Contractual Obliga-
tions, Conclusion of Contract, Unfair Terms (Sellier 2007); Acquis Group (eds), Contract II: General Provisions, Delivery of Goods,
Package Travel and Payment Services (Sellier 2009).
63 See Fabrizio Cafaggi, ‘Private Regulation in European Private Law’ EUI Working Paper RSCAS 2009/31; Fabrizio Cafaggi, ‘Private
Law-Making and European Integration: Where Do They Meet, When Do They Conflict?’ in Dawn Oliver, Tony Prosser and Richard
Rawlings (eds), The Regulatory State (OUP 2010) 201–228.
64 Anne-Marie Slaughter, ‘International Law in a World of Liberal States’ (1995) 6 EJIL 503, 518.
65 The embers of the state’s dominance thus continue to burn much more brightly than those of the code. Globalisation and the
apparent decline of the Westphalian state model, as well as the surge in respect for pluralism and diversity, has of course stifled
these vestiges.
66 While this consideration extends beyond this paper, it is worth noting that it might reflect Joerges’ assertion that European inte-
gration ‘can be understood and re-constructed as a response to the failures of the Weberian nation state’; Christian Joerges, ‘Unity
in Diversity as Europe’s Vocation and Conflicts Law as Europe’s Constitutional Form’ (2010) LSE ‘Europe in Question’ Series, LEQS,
2010/28, 6.
67 Berman (n 31).
Law 75
since the publication of Koskenniemi’s ILC Report in 2006.68 Yet fragmentation and incoherence are neces-
sarily correlative of private law and Europeanisation in general; their promotion has been a concern since
the 19th century codification efforts, which aimed to generate nationally-defined, autonomous legal systems.
Its significance has re-emerged following EU law’s largely piecemeal ‘incursions into the classical territory
of private law’, leading to the ‘disintegration’ of the latter,69 which, governed by hierarchy and unity, order
and coherence, have been undermined.70 This putative fragmentation reflects one justification for more
recent European legislative action, including the Consumer Rights Directive (hereinafter CRD); however,
the promotion of coherence and certainty71 is rarely explicitly stated as the predominant concern, which
rather continues to be market facilitation.72 Private law has thus been described as ‘a fragmented regulatory
framework across the Community which causes significant compliance costs for businesses wishing to trade
cross-border’73 that cannot be managed via orthodox mechanisms of conflict resolution (that is, private
international law rules).74
The desire to avoid conflict potentially deriving from the interdependence of legal orders is reflected
in the principle of primacy of Union law, and its precedence over national law. Moreover, conform inter-
pretation, developed in relation to the conformity of specific legal rules between national and Union law
in Marleasing75 and extended in later case law to cover the entire system, initially aimed to promote
consistency in relation to the (then) first pillar of EU law and was subsequently extended to the third
pillar.76 It requires that the national judge consider the entire legal system so as to ensure her interpre-
tation is compatible with Union law: the obligation of ‘conform’ interpretation is no longer seen as an
application of the principle of primacy, but has been gradually transformed into a holistic principle of
‘consistent’ (or ‘harmonious’) interpretation of the whole legal order at all levels;77 and secondly, that the
emphasis is no longer – or no longer merely – on the ‘hierarchy’ of legal norms, or legal orders but rather
on consistency between levels of regulation’.78 This understanding of the doctrine engages the accept-
ance of pluralism – and constitutional pluralism79 in particular – as well as the multi-level nature of
private law.
Both of these perspectives reflect the notion that the connection between normativity and the State is not
a necessary one80, underpinning the idea that ‘[t]he overlapping spheres of competence among the suprana-
tional, national and subnational levels of governance, produce plural sites of norm creation, operation and
68 In 2005, Koskenniemi set out his normative concerns with the notion of global legal pluralism, and in particular, increasing
fragmentation in Martti Koskenniemi, ‘Global Legal Pluralism: Multiple Regimes and Multiple Modes of Thought’ (Harvard Univer-
sity, Keynote Speech, 05 March 2005)[1].pdf>
accessed 14 April 2012; see also, Martti Koskenniemi, ‘Fragmentation of International Law: Difficulties Arising from the Diversifica-
tion and Expansion of International Law’ (2006) UN.A/CN.4/L.682.
69 Wieacker (n 15) 434–438.
70 The impact of fragmentation will also diverge across the Member States; prima facie, if coherence and systemisation is more
important in civil law countries, based on the almost-complete private codifications where gaps filled by the relevant (generally
legislative) authorities, arguably they will be more affected than the common law systems by the fragmentation engendered by the
Europeanisation of private law.
71 CRD, 2011/83/EU, Recitals 6 and 7.
72 As the Social Justice Study Group has recognised, the European Commission generally advances consumer protection norms that
have the aim of protecting weaker parties but which also aim to facilitate the operation of the market, via market correction. See
Study Group (n 18) 661.
73 European Commission, ‘Proposal for a Directive on Consumer Rights’ COM(2008) 614, 2.
74 Fabrizio Cafaggi, ‘Introduction’ in Fabrizio Cafaggi (ed), The Institutional Framework of European Private Law (OUP 2006) 6. Other
means of conflict resolution would include, eg, the open method of coordination as a means of governance; Walter van Gerven,
‘Bringing (Private) Laws Closer to Each Other at the European Level’ in Fabrizio Cafaggi (ed), The Institutional Framework of Euro-
pean Private Law (OUP 2009) 37–78, 60. Pluralism as empirical fact is further reflected in the scope for conflicts, of a vertical and
horizontal nature; such conflicts are deemed to be a result of the absence of hierarchy in the legal orders, arising as a result of the
multiplicity of legal sources and of the claims of dispute resolution bodies to decide and regulate.
75 C-106/89 Marleasing [1990] ECR I-4135.
76 C-105/03 Pupino [2005] ECR I-5285.
77 Initially developed in relation to conformity of specific legal rules between national and Union law in Marleasing (n 75) and Joined
Cases C-397–401/01 Pfeiffer [2004] ECR I-8835, Judgement, para 116, as well potentially with ECtHR jurisprudence, as the CJEU
recognised in C-399/11 Melloni nyr, Judgement, para 50.
78 Walter van Gerven, ‘Private Law in a Federal Perspective’ in Roger Brownsword and others (eds), The Foundations of European Private
Law (Hart 2011) 337–351, 345–346.
79 Neil Walker, ‘The Idea of Constitutional Pluralism’ (2002) 65 MLR 317; Miguel P Maduro, ‘Interpreting European Law: Judicial
Adjudication in a Context of Constitutional Pluralism’ (2007) 1 EJLS.
80 It should be noted that this statement does not engage the significant discussions of legitimacy and authority, which extend far
beyond the scope of this paper.
From Multiple Legal Cultures to One Legal Culture? Thinking About Culture,
Tradition and Identity in European Private Law Development
enforcement, resulting in what has been described as an entity of “interlocking normative spheres” where no
particular one is privileged’.81 While calling into question the reference to the State as the only or predominant
focus point of authority and legitimacy,82 this perspective nevertheless allows for the Member States to endure
as the ‘masters of the Treaties’. Moreover, it promotes the interdependence of legal orders as a normative value,
whereby they are conceived not as ‘mutually exclusive but intertwined, with no legal system being especially
B. Shifting Conceptualisations of Private Law in a Pluralist, Multi-Level Construct
It has been noted that private law was initially conceptualised as predominantly technical and largely politi-
cally neutral, an understanding reinforced in the civil codes and common law, which attributed great sig-
nificance to individual freedom and private autonomy and little to the law’s role in society. Nevertheless,
mechanisms existed – including national constitutions – that aimed to protect and guarantee the individual
fundamental rights, predominantly against the State.84 With the emergence of EU law and international law
of direct effect, the source of the States’ obligation to protect their citizens from each other shifted, initially
via EHCR jurisprudence.85
This shift and its effect on the conceptualisation of private law is reflected in Caruso’s statement:
In a purely intranational, self-referential setting, legal actors usually perceive their municipal pri-
vate law as an ideologically neutral set of adjudicatory rules and principles . . . On an international
stage, by contrast, a State’s control over its private law is laden with ideological significance and tied
historically to the very notion of sovereignty.86
The EU legislature, engaging private law as predominantly technical, initially assumed that the construc-
tion of a ius commune, in ‘European civil code’ form, would facilitate the emergence of a uniform (and
as it seems now, mistakenly, unified) European private law.87 This deduction has become highly dubi-
ous, not least because it affords little opportunity for understanding private law in its entirety (that is,
its political, social, and cultural, as well as legal and economic dimensions).88 Indeed, for this, amongst
other reasons, the Union institutions have shifted their focus from codification in recent decades, par-
ticularly towards targeted maximum harmonisation.89 The recognition that neither codification nor
81 Lucinda Miller, The Emergence of EU Contract Law: Exploring Europeanization (OUP 2011) 155, citing Neil MacCormick, ‘Democracy,
Subsidiarity and Citizenship in the European Commonwealth’ (1997) 16 Law and Philosophy 331.
82 To avoid becoming embroiled in broader constitutional discourses that extend beyond this paper, European law is understood to
be authoritative and have normative force, notwithstanding that it does not exist or operate within specific territorial boundaries,
tied to a central power.
83 Daniel Augenstein, ‘Identifying the European Union: Legal Integration and European Communities’ in Daniel Augenstein (ed),
‘Integration Through Law’ Revisited: The Making of the European Polity (Ashgate 2012) 99–112, 108.
84 Private autonomy needs to be limited in respect of fundamental rights, including, predominantly, those that formally fell within
constitutionally-protected considerations. This understanding can allow for a connection to be drawn within consumer law to the
extent that an analogy might be drawn between the parties traditionally protected by the constitution (the weak citizens, in respect
of the stronger state) and those protected by consumer law (the weak consumer, in respect of the stronger seller/supplier).
85 For example, Art.8, right to privacy: Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22.
86 Daniela Caruso, ‘The Missing View of the Cathedral: The Private Law Paradigm of European Legal Integration’ (1997) 3 ELJ 3, 5.
87 The focus on codification as a means of achieving unification is seen in European Parliament, ‘Resolution of the European Parlia-
ment’ OJ 1981 C 158/400. For many years, there was a dominant focus, in terms of legislative options, on codification. There has
been a marked shift in the approach of both the Parliament and the Commission. In particular, this can be seen in light of the Com-
mission’s adoption of Option Four of the 2010 Green Paper (European Commission, ‘Green Paper from the Commission on Policy
Options for Progress Towards a European Contract Law for Consumers and Businesses of 1.07.2010’, COM(2010) 348 final), from
one based on the codification of private law rules, to an emerging European private law based on the one hand, on the continual
construction of the acquis, and on the other, on the notion of “optionality” as it exists in the Proposal for a Common European Sales
Law (‘Proposal on a Common European Sales Law’, COM(2011) 635 final). It should be noted that this proposal was withdrawn in
December 2014, with the aim of adopting a modified proposal dealing with online sales.
88 Cafaggi, ‘Private Law-Making and European Integration’ (n 63) especially 205. The notion that law operating within a multi-
level, pluralist context and the scope for the engagement of comparative analysis therein – for these purposes – cannot be
understood comprehensively in the context of a discourse in which law is conceived within the boundaries of the state reso-
nates in the discourse on the emergence of ‘new’ legal orders (including the lex mercatoria, regimes of self-regulation, ICANN
and so on).
89 The shifts in the Commission from minimum to maximum to targeted maximum harmonisation should be considered: Euro-
pean Commission, ‘Green Paper on the Review of the Consumer Acquis’ COM(2006) 744 and European Commission, ‘Proposal
for a Directive on Consumer Rights’, COM(2008) 614 final. Minimum harmonisation establishes a minimum level of protection
with which the Member States must comply, without precluding the introduction of more restrictive norms at the national
Law 77
harmonisation necessarily leads to unity, aligns with private law’s constitutionalisation, regulation and
As it emerged initially from the Union regime, private law was conceived as predominantly functional, uti-
lised for market facilitation purposes. Yet even as private law has opened itself up to values, a lack of clarity
surrounds these processes, particularly relating to EU law. Across the Member States, different understand-
ings of justice developed, from ‘different conceptions of the social or welfare state, the different attitudes
towards social ideals and, in turn, the degree of distrust regarding state intervention’.90 As Micklitz notes,
initially attempts were made to identify and coordinate national social policy programmes, highlighting the
implementation of what were, and still remain, divergent national conceptions of social justice and the sig-
nificance of the values underpinning to the emerging European regime.91 However, as EU law’s focus came
to fall predominantly on the internal market, policy conflicts became less frequent in private law than in
other areas, as the Member States largely accepted the need for shared (at least, in terms of economic) policy
for the purposes of market construction. Private law’s market-advancing characteristics remain relevant,
particularly as they dissolve the links between the State and law and facilitate the ‘transnational’ market.92
Furthermore, given the focus on ‘EU [consumer] law [as] market behaviour law’,93 that is, as fundamentally
instrumental,94 little significance has been attributed to the emergence of a new, or distinct, value order in
European private law.95
Yet, EU law’s advancement beyond the Union’s economic heart into areas traditionally regulated by
the Nation State is reflected in the inroads made by private law into anti-discrimination, regulated
markets, product and food safety, as well as consumer protection, consequently rendering it less techni-
cal, in terms of its application, outlined above, and increasingly regulatory. This is identifiable in the
CJEU’s interpretation of Union law, and particularly its construction of an ‘Area of Freedom, Security and
Justice’ post-Lisbon.96 Developing beyond its original market focus, private law ‘opens itself up’ to values
via its socialisation.97 Yet, as Kennedy notes, the notion of ‘social’ continues to lack ‘proper system and
conceptual clarity’ in terms of its application and use.98 The market also remains the focus; as Collins
asserts, ‘private law has become a synthesis that combines both its traditional concerns about correc-
tive justice between individuals and instrumental concerns about steering markets towards distributive
The characterisation of European private law as a multi-level structure is significant. Its problems also tend
to be conceptualised functionally, and consequently, they cut across the national, European, international
and transnational orders. Yet the EU continues to lack an enforcement body and thus, must rely on the ‘local’
level. Maximum harmonisation essentially removes the discretion of the Member States and expands that of the Union. Legisla-
tion of a maximum nature purports to establish a set of rules uniformly applicable across the Member States; there exists no
freedom for divergent norms of either a more or less stringent standard, such that the Member States cannot avoid the reach of
European legislation. Targeted maximum harmonisation involves the identification of the key areas in which barriers to trade
have arisen consequent to minimum harmonisation and the imposition of fully harmonised norms and standards of protection
90 Hannes Rösler, ‘The Transformation of Contractual Justice: A Historical and Comparative Account of the Impact of Consumption’
in Hans-Wolfgang Micklitz (ed), The Many Concepts of Social Justice in European Private Law (Edward Elgar 2011) 327–358.
91 Hans-Wolfgang Micklitz, ‘Judicial Activism of the European Court of Justice and the Development of the European Social Model in
Anti-Discrimination and Consumer Law’ EUI Working Paper 2009/19, 8.
92 Christian Joerges and Christoph Schmid, ‘Towards Proceduralization of Private Law in the European Multi-Level System’ in Arthur
Hartkamp and others (eds), Towards a European Civil Code (4th edn, Kluwer 2011) 277–309, 288. This is discussed further below
in relation to the notion of ‘market culture’.
93 Jac GI Rinkes, ‘European Consumer Law: Making Sense’ in Christian Twigg-Flesner and others (eds), The Yearbook of Consumer Law
2008 (Ashgate 2007) 3–18, 3: ‘The question, however, is whether consumer law is market behaviour law, or law for the benefit of
the consumer?’.
94 Christoph Schmid, ‘The Instrumentalist Conception of the Acquis Communautaire in Consumer Law and its Implications on a
European Contract Law Code’ (2005) 1 ERCL 211.
95 Hans-Wolfgang Micklitz, ‘European Private Regulatory Law: A Plea for New Thinking’ 15 et seq (on file with author).
96 Paul Craig, The Lisbon Treaty: Law, Politics and Treaty Reform (OUP 2011), and in particular, Chapter 5 on competences, 155–192.
97 Matthias Kumm, ‘Who is Afraid of the Total Constitution? Constitutional Rights as Principles and the Constitutionalisation of
Private Law’ (2006) 7 GLJ 341.
98 Duncan Kennedy, ‘Thoughts on Coherence, Social Values and National Tradition in Private Law’ in Martijn Hesselink (ed), The Poli-
tics of a European Civil Code (Kluwer 2006) 9–31, 9.
99 Hugh Collins, ‘Governance Implications for the European Union of the Changing Nature of Private Law’ in Fabrizio Cafaggi and
Horatia Muir Watt (eds), Making European Private Law: Governance Design (Edward Elgar 2008) 269–286, 278–279.
From Multiple Legal Cultures to One Legal Culture? Thinking About Culture,
Tradition and Identity in European Private Law Development
or national counterparts for application and enforcement.100 As a result, the national courts have gradually
been empowered by the CJEU to balance different freedoms and rights,101 bringing a necessarily political
dimension to private law within the national spheres.
Moreover, the constitutionalisation of private law, along with its materialisation and regulation, suggests
that private laws can no longer be understood as distinct or ‘self-standing legal orders but are rather embed-
ded in a higher legal order, the national constitution, against which the values underpinning private law
can be measured’,102 particularly with regard to its core dimensions, reflected in the fundamental rights
limitations on private autonomy. Indeed, Collins highlights that private law’s ‘interlegality or intertextuality’
should be explored, calling into question their strictly autonomous nature.103 Of course, this has practical
effects, especially as Amstutz notes, European private law cannot be understood as an entirely autonomous
order; while it is sui generis in its nature, the EU order – and private law’s direct effect on individuals –
depends on national legal systems for its effect.104
IV. Via Unitas in Diversitate to a Europeanised (Legal) Culture?
This section of the paper further analyses the embeddedness explored above, developing the discourse on
the reciprocal influences of culture, state-building and legal development, and uncovering the perspective
of unitas in diversitate in relation to private law’s plural, multi-level development. This leads to the analysis,
in the final section, of the need for a common European (legal) culture as a precondition to the Europeanisa-
tion of private law.
A. The Institutionalised Foundations of the Embeddedness of Private Law
Development in the Member States: Revisiting Culture, Tradition and Identity
in Europeanisation
It is worth noting that two dimensions of culture are identifiable in the Treaty structure. While it provides
for the construction of a European cultural policy,105 it also establishes the foundations for the protection
and promotion of the diversities of national cultures and identities via the principle of unitas in diversitate.
Unity and diversity are competing characteristics of the European space; while the former underpins inte-
gration, particularly in terms of the creation of a harmonised body of norms to regulate transactions and
facilitate the market, diversity is reflected in the plurality of national cultures, traditions, and identities.
Unitas in diversitate, the motto of the ill-fated European Constitution,106 aims to provide the framework
for the recognition of these two dimensions of the European space, in line with the dynamics of European
The TEU Preamble provides that the Member States should aim, ‘drawing inspiration from the cultural,
religious and humanist inheritance of Europe, from which have developed the universal values of the invio-
lable and inalienable rights of the human person, freedom, democracy equality and the rule of law [ . . . ] to
deepen the solidarity between their peoples while respecting their history, their culture and their traditions’
in establishing the European Union. This requires that, while furthering integration via the objectives of
the Union (per Article 3 TEU, the construction of an international market, an area of freedom security and
justice, and an area of Union citizenship, the development of a common security and defence policy and the
facilitation of an ever closer Union), the national and Union institutions must nevertheless respect national
100 That is to say, as Sassen has advanced with regard to global governance, private law, and European private law, necessitates the local
and national levels; it is dependent on them. See Saskia Sassen, ‘Globalization or Denationalization?’ (2003) 10 Rev.Int.Pol.Econ. 1.
101 Franz Werro (ed), Droit civil et convention européenne des droits de l’homme (Schulthess 2006) 135 et seq.
102 Hans-Wolfgang Micklitz (ed), The Constitutionalization of Private Law (OUP 2014) 1.
103 de Sousa Santos (n 50) 436–437.
104 Marc Amstutz, ‘Interlegality in European Private Law: A Question of Method?’ in Christian Joerges and Tommi Ralli (eds), European
Constitutionalism Without Private Law: Private Law Without Democracy, Recon Report No.14 (Arena 2011) 55–69.
105 Rachel Crauford-Smith, ‘Cultural Policy’ in Paul Craig and Grainne de Búrca (eds), The Evolution of EU Law (2nd edn, OUP 2011)
869–894. Notwithstanding the absence (until the early 1990s) of a European cultural policy, alongside the broad division of com-
petences between the EU and Member States, it has become a matter of increasing significance at both the EU and national levels.
The Maastricht Treaty (Art.151(1) EC) initially introduced the notion of a European cultural policy into the Treaty structure.
106 Art.I-8, Draft European Constitutional Treaty, OJ C 310/1, 16.12.2004. See further, Jen Hendry, ‘‘Unity in Diversity’: Questions of
(Legal) Culture in the European Union’ (2008) 3 Journal of Comparative Law 289. Joerges has argued that the notion of unitas in
diversitate can be maintained by virtue of engagement with the notion of understanding European private law as a type of conflicts
law: Joerges (n 66) 1.
Law 79
Article 2 TEU sets out the values of the Union – ‘respect for human dignity, freedom, democracy, equal-
ity, the rule of law and respect for human rights, including the rights of persons belonging to minori-
ties’ – characterising them as common across the Member States. Moreover, Article 3 TEU advances that
the Union must promote social justice, solidarity and ‘economic, social and territorial cohesion’, per the
respect for cultural and linguistic diversity, ‘ensur[ing] that Europe’s cultural heritage is safeguarded and
enhanced’. Article 3 thus sets out the cultural as well as economic (the construction of the internal mar-
ket), political (the promotion of peace and territorial cohesion), social (the promotion of social justice,
protection, solidarity and social cohesion) and legal (the area of freedom, security and justice) dimensions
of integration.
The Treaties also provide the basis for more overtly positive action on the part of the Union institu-
tions. Thus, Article 4(2) TEU requires the Union respects ‘the equality of Member States before their
Treaties as well as their national identities, inherent in their fundamental structures . . . ’, while Article
67(1) TFEU establishes that ‘[t]he Union shall constitute an area of freedom, security and justice, with
respect for fundamental rights and the different legal systems and traditions of the Member States’.
Article 167 TFEU further highlights that national identities are worthy of protection, and following
Article 151 EC, obliges the EU to ‘contribute to the flowering of the cultures of the Member States, while
respecting their national and regional diversity and at the same time bringing the common cultural
heritage to the fore’.
The significance of culture, tradition, community and identity is identifiable in national jurisprudence
on Europeanisation and integration. For example, culture has been explicitly linked to identity in the
BVerfG’s Lisbon judgement,107 in which it asserted that national political determinations as to economic,
social and cultural standards within the Member States should be respected in the context of integration,
in those ‘areas which shape the citizens’ living conditions, in particular the private sphere of their own
responsibility and of political and social security, protected by fundamental rights, as well as in respect
of political decisions that rely especially on cultural, historical and linguistic perceptions’.108 The BVerfG
highlighted that ‘essential areas of formative action’ encompass various cultural dimensions, including
language, family and education, and freedoms of opinion, the press, association, and religion. By refer-
ring to the protection of the Member States’ constitutional identities per Article 4(2) TEU109, the BVerfG
engaged national culture and identity, invoking Article 79(3) Grundgesetz, and delineating its responses
to integration’s potential reach,110 in terms of the supremacy and primacy discourses at the national
The objectives of these key provisions appear to overlap: while reference is made to the protection of
the diverse, predominantly national, cultures in the communications of the Union institutions, at the
same time, that which is common has been advanced via the promotion of the Member States’ ‘com-
mon heritage’.112 Clearly, these considerations are not limited to the development of cultural policy but
extend across integration processes, as well as the formation, interpretation and application of EU law;
this is clear from Article 167(4) and (5).113 This suggests that the European project cannot adequately
be conceived only as promoting commonality, either via the development of a European cultural policy
or via a uniform body of norms, at the expense of the other virtues of the European order, namely, the
Member States’ cultures, traditions and identities, deemed to have an inherent value. Rather, what is
required is a balancing exercise between safeguarding national diversities and the promotion of the com-
monality required for integration (whereby the latter arguably leads to the elimination of the former).
107 Also in the Maastricht decision: BVerfG 89, 155; 2 BvR 2134, 2159/92; 12 October 1993.
108 With reference to the notion of the ‘democratic formative action’, derived from the principle of democracy, encompassed in the rule
of law principles, set out in Art.1 and 20 of the Basic Law, to be protected in line with the eternity clause in Art. 79(3), even where
constitutional changes are made, eg, in respect of Germany’s membership of the EU; BVerfG, 2 BvE 2/08, 30 June 2009, para 249.
109 BVerfG, 2 BvE 2/08, 30 June 2009, paras 240–241.
110 Hans-Wolfgang Micklitz, ‘German Constitutional Court (Bundesverfassungsgericht BVerfG) 2 BvE 2/08, 30.6.2009 – Organstreit
Proceedings Between Members of the German Parliament and the Federal Government’ (2011) 7 ERCL 528.
111 See recently, a particularly interesting article dealing with the cases discussed: Armin von Bogdandy and Stephan Schill, ‘Overcom-
ing Absolute Primacy: Respect for National Identity under the Lisbon Treaty’ (2011) 48 CMLR 1.
112 Declaration on European Identity, 1973 (12 Bull. EC 118).
113 Art. 167(4) and (5) TEU, which provide ‘4. The Union shall take cultural aspects into account in its action under other provisions of
the Treaties, in particular in order to respect and to promote the diversity of its cultures . . . and ‘5. . . . to contribute . . . the Council..
shall adopt incentive measures, excluding any harmonisation of the laws and regulations of the Member States’.
From Multiple Legal Cultures to One Legal Culture? Thinking About Culture,
Tradition and Identity in European Private Law Development
These seemingly contradictory objectives reflect, according to Hendry, the unitas in diversitate paradox.114
The understanding of how this should be engaged reflects the different ideological underpinnings fram-
ing European integration and the Europeanisation of law, one promoting a discretion on the part of
the Member States allowing for the preservation of the diversities existing between them, and the other
removing this discretion – and thus, much of the scope for the preservation of diversities – via the creation
of a body of uniform norms.115
B. The Consumer Concept at the European Level
The emergence and evolution of the consumer concept in the national context has been outlined above. It
was initially introduced at the European level in Union legislation, and putatively clarified via CJEU jurispru-
dence and the CRD;116 engaging the culture and identity discourse, it allows for the reach of Union legislative
efforts to be linked to the unitas in diversitate principle.
Two interrelated considerations are key: the reach (minimum/maximum/targeted maximum) of
European harmonisation efforts and the divergent standards of consumer protection existing across the
Member States, shaped fundamentally by different concepts of consumer (as it is the consumer identity
that gives rise to protection). Both considerations beg the question of whether a single European conceptu-
alisation is feasible.117 Shaped by various factors, including the rationales underpinning consumer protec-
tion and particularly, the aims of doing justice, the Member States might provide for higher or lower levels
of consumer protection via national private law norms. As these rules might constitute national barriers
to trade, it falls to the European institutions, having the aim of promoting the internal market, to chal-
lenge them. This sets a high threshold for such provisions, which promote consumer protection interests
but also potentially undermine trade. As Union legislation has been promulgated, each Member State has
faced issues of implementation, concerning the delineation of the relevant legislation. Ultimately there-
fore, post-implementation, the scope for divergence in national levels of consumer protection is shaped
by the reach of Union legislation, which determines not only the modifications required in national law
to ensure satisfactory compliance with Union norms,118 if any, but also the interpretative approach of
the CJEU.
The focus here falls on directives as most consumer legislation is promulgated in this form. Two simpli-
fications can be drawn at the outset. A directive of a minimum harmonisation nature affords the Member
States discretion to determine the level of protection – and the breadth of the consumer concept –
within the national system, providing this satisfies the minimum set out in the directive. Essentially,
minimum harmonisation allows Member States to provide for a higher level of protection than envisaged
by the Union legislature, thereby maintaining the possibility for divergent levels of protection across
the European space. In contrast, a directive providing for maximum harmonisation, strictly understood,
removes the latitude permitting the Member States to establish or maintain a more stringent body of
protection – or indeed, a broader concept of consumer – than established by the Union legislature.
Consequently, it removes the scope for divergence in levels of protection between and across domestic
law and the Union regime.
As concerns surrounding the interpretation of Union norms, or the non-compliance of national law
with the Union legislation, generally find their way before the CJEU, its interpretative approach is signifi-
cant. Two related considerations are pertinent: on the one hand, the judicial development of a common,
Europeanised119 notion of consumer, which is absent from Union legislation, and on the other, the recog-
nition of the social, cultural and linguistic dimensions shaping consumer protection in the national legal
114 See Jen Hendry, Unitas in Diversitate? On Legal Cultures and the Europeanisation of Law, PhD Thesis (EUI 2009) 18.
115 It should be noted, and as becomes clear from the discussion of maximum and minimum harmonisation, that harmonisation in
itself does not necessarily aim to undermine diversity; this rather depends on the reach of Union legislation.
116 S. 2(1) CRD: ‘any natural person who, in contracts covered by this Directive, is acting for purposes which are outside his trade, busi-
ness, craft or profession’.
117 Wilhelmsson questions to what extent it is appropriate that these notions be ‘Europeanised’: Wilhelmsson (n 43) 245, and whether,
in reality, it might be the case that such differences exist between national notions of (average) consumer that it is useless to make
reference to a European notion.
118 DG for Internal Policies, Policy Department: Citizens’ Rights and Constitutional Affairs, ‘The Potential Impact of the Consumer
Rights Directive on Member States’ Contract Law’ PE 419.606, 2009, 14.
119 Wilhelmsson (n 44).
Law 81
Considering the latter, the engagement of these factors is not simply a matter of the CJEU identifying dif-
ferences or commonalities in the text of Union legislation or the transposing national rules but rather relates
to how it understands these rules to be interpreted and applied. Indeed, Wilhelmsson has considered that
the divergent consumer cultures permeating the national orders requires not only recognition of different
standards of protection but also a broader and more transparent appreciation of the significance of national
‘social, cultural or linguistic factors’120 at the European level. Moreover, the reach of Union legislation neces-
sarily shapes the latitude of the Advocate General121 and the Court to engage political, economic, societal and
cultural factors in their interpretation of the European consumer concept. Maximum harmonisation direc-
tives aim to facilitate uniformity across the national systems. Ostensibly, when implemented, the directive
itself should remove (textual) divergences between the national systems and thus, eliminate the need for the
CJEU to engage them. Evidently, this does not always happen in practice; moreover, reference only to textual
construction is insufficient as the factors shaping levels of national consumer protection extend far beyond
the text itself. The aims of maximum harmonisation dictate that the CJEU’s interpretative approach oper-
ates to undermine these divergences in reality, whether relating to the norm legislated for by the national
parliament, or the interpretation rendered by the national court. Ultimately, there is a lack of clarity as to
how the CJEU engages these considerations, a concern which has become even more complex in the past
decade, as the rationales, manifestations and contexts of the Union institutions have shifted, both in terms
of the declining focus on codification, and the reach of harmonisation. This is identifiable, e.g. in the CRD,
which was initially advanced as a maximum harmonisation directive and enacted as one of ‘targeted full
Returning to the recognition of commonality and diversity, we can consider whether the Court and the AG,
in rendering interpretations of concepts which exist both within the national and European regimes, refer to
the building blocks underpinning divergent national cultures and traditions from which these concepts have
been constructed. The jurisprudence suggests that, in comparison with the Court, the AG will more readily
explicitly engage linguistic, cultural and social diversities.123 Yet, this approach is too simple; implicit refer-
ence to the relevance of such factors is identifiable in the Court’s interpretation of the consumer acquis.124
Moreover, the CJEU has advanced that even where European legislation provides for maximum harmonisa-
tion, there is ‘a margin for manoeuvre’ which ‘authorises [Member States] to maintain or introduce particular
rules for specific situations’;125 this arguably facilitates the maintenance of divergences across the national
systems, allowing for interpretations of ‘consumer’, dependent on the nature of the case heard before the
national court.126
As noted, the broader task is one of balancing the potentially diverse interests of the (consumers of the)
Member States (reflected in their models of consumer protection), and market facilitation (and its apparent
need for uniformity), while also ensuring that justice is done. That is to say, as consumer protection devel-
ops as part of private law beyond the State, it arguably engages different interests and values, than those to
which private law within the state has been considered to adhere.127
120 Thomas Wilhelmsson, ‘Introduction: Harmonization and National Cultures’ in Thomas Wilhelmsson, Elina Paunio and Annika Poh-
jolainen (eds), Private Law and the Many Cultures of Europe (Kluwer 2007) 3–20, 15–16. The ‘social, cultural or linguistic factors’ as
highlighted in C-220/98 Estée Lauder Cosmetics GmbH & Co OHG v Lancaster Group GmbH [2000] ECR I-117, Judgement, para 29.
121 Hereinafter, AG.
122 Art.4 CRD.
123 C-315/92 Verband Sozialer Wettbewerb eV v Clinique Laboratoires and Estée Lauder Cosmetics [1994] ECR I-317, Opinion of AG
Gulmann, para 18.
124 Estée Lauder Cosmetics (n 120), Judgement, para 29: ‘ . . . in particular, it must be determined whether social, cultural or linguistic
factors may justify the term `lifting’, used in connection with a firming cream, meaning something different to the German con-
sumer as opposed to consumers in other Member States . . . ’. As noted above, reference is made to the notion in the Unfair Com-
mercial Practices Directive, at Recital 18. Furthermore, the CJEU’s scope for engaging in comparative, ‘cross-directive’ reasoning in
which it has aimed to achieve coherence between the various consumer directives, would dictate that this Europeanised approach
is soon extended across the Union acquis.
125 C-101/01 Lindqvist [2003] ECR I-12971, Judgement, para 98.
126 Vanessa Mak, ‘Standards of Protection: In Search of the ‘Average Consumer’ of EU Law in the Proposal for a Consumer Rights
Directive’ (2011) 19 ERPL 25, 29.
127 One very explicit and stark statement has been made by Joerges and Schmid who have sought to highlight the complexity of this
type of balancing exercise, and who advance that the CRD ‘unlike the CFR and all other national private-law instruments . . . deviate[s]
from the classic ethical concept of private law, which pursues justice between parties in the individual case (normally communica-
tive, sometimes also distributive justice) as the highest objective. Instead, the CRD sacrifices justice between the parties in favour of
providing European businesses with a basic, but uniform, regulatory framework for market transactions with consumers’, Joerges
and Schmid (n 94) 277–309, 280. See further below at (n 170).
From Multiple Legal Cultures to One Legal Culture? Thinking About Culture,
Tradition and Identity in European Private Law Development
This issue is therefore evidently broader than consumer law; indeed, it is a constitutional matter. As
Schmid understands it, the instrumentalisation of private law128 dictates that the significance attributed
to social justice and ‘the immaterial interests of consumers’ (deriving from the national cultures and
traditions),129 on the one hand, and the promotion of the internal market, on the other, will never be equal,
as preference is necessarily attributed to the former as the effet utile of European law both via the EU legis-
lature and the CJEU’s ‘one-sided teleological’ approach.130 Thus, while it might be expected that consumer
protection constitutes an ‘overarching interpretative meta-principle’,131 Schmid rejects the notion that the
CJEU ‘pursue[s] a coherent consumer model’. The interpretation of consumer in the CRD, which is largely
yet to be seen, will therefore be key.132 In particular, given the noted lack of consistency and coherence, it
remains unclear whether a restrictive interpretation will dictate that divergent national conceptualisations
of consumer, providing for greater protection, will necessarily fall foul of the objectives of the European
This section has provided an outline of unitas in diversitate, building on the brief analysis of the evolu-
tion of the consumer concept at the national level. Unitas in diversitate intends to institutionalise the pro-
tection of diversities, serving as a guiding principle for legislative development and judicial interpretation,
by promoting, as Hendry explains, unity but avoiding uniformity and diversity, avoiding fragmentation,134
within Member States in the context of the harmonisation – and potentially, construction of a uniform
body of norms – of European law. It provides a basis for the consideration of the reciprocal influences of
culture and tradition, the evolution of the Nation State, and the legal development occurring within and
beyond these territorial boundaries, in light of the promotion of uniformity for integration purposes via
the Europeanisation of law. Against this background, and building on the idea introduced above – as to
the recognition of multiple identities and belongings, and that neither the national nor the European
consumer constitutes a mere legal concept but is also an identity deriving from culture and tradition – it
is advanced that such a perspective need not exclude all reference to the breadths of consumer cultures
continuing to exist across the nation states (or indeed beyond). Such a pluralist perspective rather sug-
gests that national conceptualisations of consumer might shape (that is, as opposed to be merely trans-
ferred to, confirmed or rejected at the European level) consumer culture in a multilevel construct of
V. The Development of a European Culture, Tradition or Identity
A. Is there a Need for a Common European (Legal) Culture as a Prerequisite to
the Europeanisation of Law?
Private law development has been inherently tied to the emergence of the State, and thus, to the cultures
and traditions that have evolved therein. The recognition of the diversities of the Nation States in the EU
context has been introduced above, generating its characteristics of commonality and diversity and shap-
ing its plural nature. This gives rise to the unitas in diversitate paradox, where diversity is deemed worthy of
protection, and yet also deemed problematic, undermining the effect of harmonisation efforts, considered
necessary for the proper functioning of the market.
It is not yet possible to identify a single, common or explicit conceptualisation either of culture, tradition
or identity that permeates the European space. Rather, there are various understandings, spilling over from
the national levels, relevant to European integration and legal development. This section aims to uncover
128 Christoph Schmid, ‘The Thesis of the Instrumentalisation of Private Law by the EU in a Nutshell’ in Christian Joerges and Tommi
Ralli (eds), European Constitutionalism Without Private Law: Private Law Without Democracy, Recon Report No.14 (Arena 2011)
17–36, 26–27.
129 Lurger (n 45) 107.
130 Christoph Schmid, ‘The ECJ as a Constitutional and a Private Law Court – A Methodological Comparison’, (2006) 4 ZERP Diskus-
sionspapier, 11–12.
131 ibid 22.
132 It is submitted that a connection can be drawn between this consideration and Unberath and Johnston’s analysis of the CJEU’s
‘double-headed’ approach: while in cases of negative harmonisation the Court has elucidated its reluctance to allow for national
provisions based on standards of consumer protection (which might also constitute a restriction to free movement, and ultimately,
free trade), in relation to positive European harmonisation, the CJEU has sought to ensure a wide application: Hannes Unberath
and Angus Johnston, ‘The Double-Headed Approach of the ECJ Concerning Consumer Protection’ (2007) 44 CMLR 1237, 1281–
133 Mak sets out the difficulties that might be faced in national system should any attempt to lower consumer protection become
necessary: Mak (n 126) 37–38.
134 Hendry (n 106).
Law 83
whether a single (and necessarily common) European (legal) culture should constitute a precondition to
European legal development, or whether a pluralist perspective (which might putatively encompass a com-
mon or shared culture at the European level) is rather more favourable in light of private law’s dynamic
evolution and the context of its Europeanisation. The need for the ‘bridging’ of gaps between national
legal cultures and traditions135 has long been a lingering concern in private law scholarship136 and would
arguably be facilitated by the construction of a European culture. Two possibilities can be advanced. On the
one hand, reference might be made to the development of a single European culture, apparently deemed
common across the Member States (per the unity that seemingly subsists from the ius commune) as a pre-
requisite to European legal development. On the other hand, the existence of a plurality of legal cultures
within and beyond the European sphere137 (and the scope for maintenance of the diversity to which this
gives rise) could be understood in itself as forming part of any emerging European culture, which is then
not necessarily single or common but rather constitutive of the multiplicity and diversity of the European
Culture, as it exists within and beyond the State, might be conceived and constructed in different ways.
Two key examples can be set out. Tuori advances a three-level analysis of legal culture: the surface level
(legislation and case law), the middle level (methodology and techniques of adjudication) and the deep
level (fundamental normative principles of law) at which Vorverständnis exists.138 For Tuori, EU legislation
and case law reflects European legal culture existing at the surface and perhaps the middle level,139 having
a ‘general role . . . in legal practices, of the functioning of legal concepts, principles and theories as a filter
through which surface-level legal material is cognized and interpreted’.140 Deeper legal culture derives from
institutional interaction and the professional elite of legal practice,141 that is, through cooperative networks
of legal scholars and legal professionals, including lawyers and judges. These interactions – which lead to the
sharing of knowledge and experiences142 – are necessarily influenced by the legal cultural backgrounds of
the actors operating in the relevant fora. Moreover, for Tuori, these ‘epistemic communities’, ‘transnational’
legal communities, or ‘third’ legal cultures, include international trade,143 civil society and the legal profes-
sion, both at the national and European level, including the CJEU, the ECtHR, the national courts, scholars,
private individuals and civil society bodies.144
Another approach can be identified from the scholarship of Duncan Kennedy, who has highlighted the
significance of the identity and rights discourses across almost the entire breadth of law.145 In the same vein,
it has long been recognised that the people of Europe are ‘interested parties’ in the construction of an EU
legal order; in Van Gend en Loos, the CJEU highlighted that the ‘Treaty is more than an agreement which
135 For the purposes of this paper, legal culture is understood as a localised understanding of culture: thus, the connection of legal
culture with a particular community can be used in order to forge an understanding of collective identity; Ralf Michaels, ‘Legal
Culture’ in Jürgen Basedow and others (eds), Max Planck Encyclopedia of European Private Law (OUP 2012) 1059–1063, 1060.
136 Reinhard Zimmermann, ‘The Present State of European Private Law’ (2009) 57 AJCL 479. More recently, see the speech of Commis-
sioner Reding at the Opening of the European Law Institute: Commissioner Reding, ‘The European Law Institute: Tracing the Path
Towards a European Legal Culture’, Speech 11/764; Vienna, 17 November 2011.
137 There is an interesting body of literature on the diversity of legal cultures in relation to the development of international law, and
particularly, international criminal law. Indeed, the clash of legal cultures was something, which, while of course not at the fore-
front of the proceedings at Nuremberg, was particularly relevant. See ‘The ‘Flick’ Case’, Nazi War Crime Trials: Nuremberg Military
Tribunal, The Green Series, Vol.VI, 119 and ‘The ‘Justice’ Case’, Nazi War Crime Trials: Nuremberg Military Tribunal, The Green Series,
Vol.III, 108.
138 Kaarlo Tuori, ‘EC Law: An Independent Legal Order or a Post-Modern Jack-in-the-Box?’ in Lars D. Eriksson and Samuli Hurri (eds),
Dialectic of Law and Reality: Readings in Finnish Legal Theory (Helsinki Faculty of Law 1999) 359–415.
139 For an elaboration of this view, see Thomas Wilhelmsson, ‘Private Law in the EU: Harmonised or Fragmentised Europeanisation?’
(2002) 10 ERPL 77.
140 Kaarlo Tuori, ‘Towards a Theory of Transnational Law: A Very First Draft’ (2010) (on file with the author), 23.
141 Wilhelmsson, ‘Introduction’ (n 120), pp. 6–7. See especially, Kaarlo Tuori, ‘Legal Culture and General Societal Culture’ in Thomas
Wilhelmsson and others (eds), Private Law and the Many Cultures of Europe (Kluwer 2007) 23–35, 26, on the basis of the notion of
law as Volksrecht developed by Savigny; Friedrich Carl von Savigny, System des heutigen römischen Rechts I (Neudruck der Ausgabe,
1840; Scientia Verlag, 1981); Tuori asserts that the ‘fast-moving’ nature of legal practice generates a gap between legal culture and
general societal culture.
142 The flagship initiative of the ‘innovation union’ under Europe 2020 looks to establish ‘knowledge alliances’; European Commis-
sion, ‘Communication, Europe 2020: A Strategy for Smart, Sustainable and Inclusive Growth’ COM(2010) 2020 final, 03.03.2010
12–13 for a summary.
143 Francis Snyder, ‘Governing Economic Globalisation – Global Legal Pluralism and European Law’ (1999) 5 ELJ 334.
144 See Thomas Lundmark, Charting the Divide Between Common and Civil Law (OUP 2012) especially Chapter 4 et seq.
145 Duncan Kennedy, ‘Three Globalizations of Law and Legal Thought: 1850–2000’ in David M. Trubek and Alvaro Santos (eds), The
New Law and Economic Development: A Critical Appraisal (CUP 2006) 19–73, 63.
From Multiple Legal Cultures to One Legal Culture? Thinking About Culture,
Tradition and Identity in European Private Law Development
merely creates mutual obligations between the Contracting States . . . confirmed by the Preamble to the
Treaty which refers not only to governments but to peoples . . . the nationals of the States brought together
in the Community are called upon to’.146 Individuals enjoy rights as European citizens, expressly through
the Treaty and via the obligations imposed on EU institutions, Member States and individuals.147 Moreover,
individuals and groups can organise themselves (or be organised) and construct their own space, culture
and identity. This furthers the understanding introduced above pertaining to the mutual influences of the
emergence of the Nation States, national cultures, traditions and identities and private law. In the European
context, this potential is particularly clear in relation to contract, which distinguishes between workers,148
consumers, and tenants, amongst others, inherently connected to the local, national or transnational com-
munity. In each case, including that of the consumer, it is the identification of the individual, as e.g. the
consumer, which gives rise to protection via national and Union norms.
B. An Alternative Perspective: A Multiplicity of European Cultures, Traditions and
The European project is conceived not as a single process but rather as a number of reflexive processes
shaped by determinations including ‘identity, power, will, order, and becoming’.149 The difficulties in coher-
ently defining and conceptualising culture and tradition, and furthermore, identity and community, are
paramount.150 With the creation of a community of European States, the idea of a ‘whole’ European iden-
tity, either conflicting with or existing alongside a plurality of – not necessarily national or territorial151
identities, has emerged but has been difficult to conceive, particularly following enlargement.
Indeed, the EU itself has been described as an ‘unimagined community’, a reflection of Benedict Anderson’s
Imagined Communities, the result of an ‘inadequately imagined . . . half revolution’.152 Allott has argued for
the ‘public mind of Europe, of a collective consciousness which can process the concepts, the ideals, the
values, the purposes, the policies, the priorities, the hopes and fears of the people and peoples of Europe’.153
On the one hand, the European identity, existing within that community, is itself formed from the multiplic-
ity of identities existing within the Member States, each of which is understood as ‘self’ and ‘other’ within
the European space. However, the European identity also constitutes a ‘self’, in itself;154 thus, not only has
the European identity been shaped by the ‘other’ from within (that is, the diversities existing between the
Member States) but also, in the context of globalisation, it increasingly interacts with the external ‘other’.
Consequently, where European identity is set against this external ‘other’, it might potentially follow the
pattern within the Nation State (or it might not): considering that ‘nationality as referent for interpersonal
relations and the human alienating effect of us and them are brought back again, simply transferred from
their previous intra-Community context to a new inter-Community one’.155
If, as considered above, it is the existence of a shared culture in the Nation State context that founds the
construction of national identity, these cultures must be understood to belong to modernity, suggesting
that national legal cultures and traditions also share commonalities despite apparent divergences. Yet as
neither culture nor tradition nor identity is tied solely to the nation, the recognition of the existence of a
plurality of cultures and identities within a territorial space removes the precondition of a specific connec-
tion between culture (or identity) and State,156 bringing to the fore the scope for European and transnational
conceptualisations. This further suggests that any notion of a European culture, tradition or identity would
146 C-32/84 Van Gend en Loos [1985] ECR I-0779, Judgement, para 12.
147 ibid, para 112.
148 Case 75/63 Hoekstra [1964] ECR 177.
149 Philip Allott, ‘The Concept of European Union’ (1999) 2 Cam.YB.Eur.Leg.Stud. 31, 49.
150 There is a body of literature – summarised in Richard Swedberg, ‘The Idea of ‘Europe’ and the Origin of the European Union – A
Sociological Approach’ (1994) 23 Zeitschrift für Soziologie 378 – which looks to the notion of the ‘European idea’, with its origins
in ‘a very much more distant past – often stretching as far back as the Middle Ages or even to Antiquity’, 378. Analogies can be
drawn in this respect with the notion of the development of a common legal culture from the lex mercatoria, see Reinhard Zim-
mermann, ‘Derecho Romano y Cultura Europea’ (2010) 18 Revista de Derecho Privado 5.
151 At least within Europe, with both the jurisdiction of the Council of Europe, and the EU.
152 Allott (n 149) 31–32, citing Benedict Anderson, Imagined Communities: Reections on the Origin and Spread of Nationalism (Verso,
London; 1991) 224.
153 Philip Allott, ‘The Crisis of European Constitutionalism: Reflections on the Revolution in Europe’ (1997) 34 CMLR 439, 489.
154 Allott, ‘The Concept of European Union’ (n 149) 32.
155 Joseph HH Weiler, ‘The Transformation of Europe’ in Joseph H.H. Weiler (ed), The Constitution of Europe: ‘Do the New Clothes Have
an Emperor?’ And Other Essays on European Integration (CUP 1999) 10–101, 95.
156 Lawrence Friedman, The Republic of Choice – Law, Authority and Culture (HUP 1990) 3–4.
Law 85
not entirely replace the national affiliation; consequently, personal, group and community affiliations must
be distinguished, allowing individuals (or the ‘European man’ to which Collins refers)157 to establish and
maintain close ties to a number of social constructions.
In the CJEU’s jurisprudence,158 there is recognition of the scope for such multiplicity; for example, the
significance of the individual’s rights in the cross-border facilitation of the market is set out in two contexts,
namely within the Nation State and where the individual is freed from the ties binding him to a nationally-
constructed identity.159 This notion of the ‘freeing’ of the individual has also been highlighted by Patterson
et al., in respect of the development of the ‘market state’ which, they assert ‘allows us also to cope with
European pluralism as a main feature of EU law: As the ‘market-state’ is process-orientated . . . it is also in
principle accessible to all societies which has the consequence of disregarding the concept of the individual
as state-national’.160
If this suggests that like identities in general, identities within the European context could be conceived
of as multiple and plural, depending on perception,161 whereby European identity both derives from and
forms part of a shared European culture, existing alongside the national, it then becomes necessary to con-
sider how a plurality of identities might be organised within the European context. Two approaches can be
identified. Sen engages the notion of membership in his work on identity; with reference to the organisation
of a plurality of identities, he highlights the need for a hierarchical construction of the divergent concep-
tions pertaining to each individual.162 In contrast, and with particular reference to European integration,
Bañkowski rejects this vertical, ‘Russian Doll-type’ interaction of identities, whereby each would exist within
the other and rather supports a dynamic, ‘horizontal interlocking’ where the ‘larger’ does not necessarily
subsume the smaller.163 This understanding potentially works alongside the European space as multi-level
in its nature,164 refuting the need for a single common identity, culture or tradition but instead, multiple,
interdependent ones.
Against this background, one key manifestation of culture, arising via the objectives and realisation of
European integration processes, has come to the fore, related to the development of the ‘market state’. As set
out by Patterson et al., the market-state culture of the European space reflects the tension arising between
European legislation and Member State sovereignty, and particularly, the significance attached to ‘market-
state features in EU law’,165 the shift from welfare to market (as embodied in the GATT, and in notions of
‘embedded liberalism’), and the increasing interdependence of the markets and States, particularly in light
of the Eurozone crisis. The focus in this understanding of culture is not on identity as conceived above but
rather on ‘whether they function to create and govern markets’, using ‘market-mechanisms to influence
behaviour’;166 that is, ‘[t]his ‘market state’ faces a diffuse, interdependent and intertwined larger market that
cuts across boundaries and while formally sovereign to establish their welfare systems, those states are in
practice required to coordinate entitlements and regulation with other market states’.167 Prima facie, the
conceptualisation of European culture as ‘market culture’ reflects the significance attached to transnational-
ism and that which exists, decentralised168 beyond the State. It clearly has links with the objectives inherent
in the initial construction of the ECSC, namely the creation of an economic union and a ‘pro-trade’ culture,169
157 Hugh Collins, ‘European Private Law and the Cultural Identity of States’ (1995) 3 ERPL 353, 357.
158 Including those of the consumer, the tenant, the worker and so forth.
159 Micklitz, in respect of Viking and Laval, ties this to Durkheim’s ‘cult of the individual’. Hans-Wolfgang Micklitz, ‘Three Questions
to the Opponents of the Viking and Laval Judgements’ Opinion Paper, Observatoire Social Européen 2012–08. (C-341/05 Laval
v Svenska Byggnadsarbetareförbundet [2007] ECR I-11767 and C-438/05 International Transport Workers’ Federation and Finnish
Seamen’s Union v Viking Line [2007] ECR I-10779).
160 Patterson and others (n 28) 16.
161 It has been asserted that culture is formed on the basis of what is perceived – ‘the identity . . . of any culture is thus aspectival rather
than essential’, such that identity, therefrom deriving can be plural: James Tully, Strange Multiplicity – Constitutionalism in an Age
of Diversity (CUP 1995) 10.
162 Armatya Sen, Identity and Violence: The Illusion of Destiny (W.W. Norton & Co 2006) 18 et seq.
163 Zenon Bañkowski, ‘The Journey of the European Ideal’ in Andrew Morton and Jim Francis (eds), A Europe of Neighbours? Religious
Social Thought and the Reshaping of a Pluralist Europe (The University of Edinburgh, 1999) 149–172, 167.
164 Collins, ‘European Private Law and the Cultural Identity of States’ (n 161) 358–359; it is not clear that what is for Europe (predomi-
nantly, the market) can necessarily be disentangled from what is for the local – it cannot be said that the market is for the European
while the social is for the local, nor can it be said that culture can be concerned only with the non-economic; this is too simplistic.
165 Patterson and others (n 28) 1.
166 ibid 2–3.
167 ibid 3.
168 ibid 18.
169 As is clear also from the jurisprudence of the CJEU, including C-8/74 Dassonville [1974] ECR 837.
From Multiple Legal Cultures to One Legal Culture? Thinking About Culture,
Tradition and Identity in European Private Law Development
the fundamental ‘commonality’ shared by the relevant Nation States being the development of the common
market. The problem with this is that other considerations encompassing the social, cultural, political and
legal dimensions of integration must now be engaged in order to reflect its whole, at least beyond the State;
that is to say, the discourse actually requires that we not only engage the critique advanced against private
law as being too market-focused but that we also consider the scope for a shifting concept of justice, from
national to European private law.170
This consideration derives particularly from the notion that the significance of the State in private law
development also shapes its conceptualisation, which shifts as Europeanisation, encompassing its consti-
tutionalisation, regulation and materialisation, advances. Thus, as explored above, the nineteenth century
development of private law within certain Nation States was deemed to be largely abstracted from public
law; yet, this did not necessarily mean that private law was also necessarily understood to be abstracted from
society.171 This abstractedness has fallen away from private law development in recent years. Over the course
of the 20th and beginning of the 21st century, private law norms have come to represent ‘local society’, shap-
ing behaviour and shaped itself by the social, cultural, political as well as economic values.172 In particular,
reference can be made to the potentially diverse understandings of social justice, which necessarily influ-
ence national as well as European private law.173 As Collins has asserted, private law as ‘the constitution of
civil society . . . often displays the bright colours and markings of a national flag: an affirmation of national
identity, solidarity, and civility’.174 Indeed, society reflects identities, cultures and traditions at different levels,
including the local, national and international. As such, the replacement of a plurality of localities with a
single, common Europeanised conceptualisation, particularly one based predominantly on economic con-
cerns, potentially negates the values maintained and advanced via this diversity. Thus, in light of the putative
dominance of a market-orientated approach to legal development, Sefton-Green has endeavoured to high-
light that private law should not only be concerned with those interests which underpin the facilitation of
the internal market, but must also engage social and moral considerations, as ‘both a vehicle for our values
and a means of implementing economic arrangements’.175
This part has aimed to briefly emphasise that culture and its component parts are evidently pertinent
to Europeanisation and integration, and take a breadth of forms, existing within and beyond the State. Yet
there continues to be a lack of clarity as to whether a single, common Europeanised understanding of cul-
ture, tradition or identity necessarily constitutes a prerequisite to the Europeanisation of law particularly
where it is conceived as a pluralist, multi-level construct. Rather, it is suggested that pluralism, necessarily
characterising the European space, can be engaged not as a hurdle to legal development but as a key char-
acteristic thereof. Thus, a strict adherence to the identification of a single perspective is rejected in favour of
a pluralist one, which is understood to ‘facilitate[ . . . ] analysis of both interdependence with other systems
and the self-identity of a particular system’.176
VI. Conclusion
In the 1980s, it was famously remarked that the EU could not be conceived either as a State or an interna-
tional organisation,177 neither as a federation nor a regime.178 This ambiguity continues to exist, especially
in light of failed attempts at federalisation and as attempts at fiscal union continue to falter. Indeed, Euro-
pean integration and the Europeanisation of private law together constitute a ‘transformative process’,179
170 This discussion is much too broad to enter into here but for a more detailed discussion, see Hans-Wolfgang Micklitz and Yane
Svetiev (eds), A Self-Sufficient European Private Law: A Viable Concept? EUI Working Paper 2012/26, and therein, Hans-Wolfgang
Micklitz, ‘A Self-Sufficient European Private Law: A Viable Concept?’, 1–21, and especially 10, and Jan Smits, ‘Self-Sufficiency of
European (Regulatory) Private Law: A Discussion Paper’, 77–82 and especially 77.
171 As has been set out above, Savigny, while highlighting the significance of private law, being distinguished from the state and thus
from public law, private law was still necessarily tied to society, in terms of the Volksgeist, or nation.
172 Nancy Fraser, Qu’est-ce que la justice sociale? (E. Ferrarese trans., La Découverte 2005).
173 Study Group, ‘Social Justice’ (n 18).
174 Hugh Collins, ‘Cosmopolitanism and Transnational Private Law’ (2012) 8 ERCL 311, 312.
175 Ruth Sefton-Green, ‘Social Justice and European Identity in European Contract Law’ (2006) ERCL 275, 285.
176 Davies (n 49) 814.
177 Neil MacCormick, Constructing Legal Systems: ‘European Union’ in Legal Theory (Springer 1997); Weiler (n 155).
178 William Wallace, ‘Less Than a Federation. More Than a Regime: The Community as a Political System’ in Helen Wallace and William
Wallace (eds), Policy-Making in the European Community (OUP 1983), 403–436.
179 Miller (n 81) 3.
Law 87
or rather, sets of processes, occurring within an increasingly globalised space.180 These dynamic processes,
therefore, continuously challenge any staticism that has seemingly been concretised at either the national
or European level. These discussions are fundamental to the context in which these processes occur, con-
cerning in particular, the notion of culture.
This paper initially set out the relationship between the emergence of the State, alongside its culture and
tradition, and private law development. Thereafter, it aimed to uncover the meaning of unitas in diversitate
and examine the dimensions relevant to the Europeanisation of private law. In light of the Treaty provisions,
this analysis has allowed for the exploration of what Hendry has deemed the paradox of unitas in diversitate,
that is, the promotion of respect for and protection of diversities on the one hand, and the promotion of that
which is common (and which potentially leads to unification) on the other. In light of the reach of Union
private law harmonisation, the analysis aims to illustrate – with specific reference to the example of the
concept of the consumer – the ideological underpinnings of these approaches.
The European space has been advanced as one within which a plurality of cultures and traditions (and
thus, identities) exist, and within which these can be established as ‘self’ and interact with the ‘other’, increas-
ingly within a globalised space.181 The understanding advanced in light of the analysis undertaken suggests
that neither culture nor identity requires, as a prerequisite for its formation, a connection with the State. It
similarly suggests that, given the interactions arising, both within and beyond the European space, neither
culture nor identity should be understood as single but rather as multiple. This is the first consideration that
calls into question the need for a distinct, common European identity or culture.
Thus, instead of aiming to identify a single European concept of culture, which permeates the national,
Union and potentially international levels of regulation, it has rather been suggested that the plurality
of cultures and identities should be engaged as a defining characteristic of European legal development
as opposed to a hurdle. The pluralist perspective is understood to underpin the scope for the private law
development within a multi-level structure; its foundations are reflected empirically in the multiplicity of
orders, cultures and traditions, sources of law, dispute resolution bodies and legal actors that exist within the
European space. It has been recognised that as a perspective of legal development, pluralism is not unprob-
lematic; rather, it reflects and promotes vertical and horizontal conflicts of different characterisations, and
gives rise to concerns of fragmentation arising from a lack of coherence, both of which are deemed to be
particularly problematic beyond the Nation State given the absence of a grounded framework lending a
degree of systemisation to governance.
On the one hand, it has been acknowledged that a plurality of conceptualisations of culture and identity
exist in the national contexts, underpinning which are diverse values, which – it has increasingly come
to be recognised – shape private law development at the national and Union levels. Moreover, it is sug-
gested that the conceptualisation of culture which seems to be taking the lead at the European level, i.e.
the notion of market culture, is not satisfactory to engage private law in its entirety. This broad appreciation
of the European space characterises the context in which the shifting conceptualisations of private law
are explored. It is submitted that the focus, which until recently has been significant, on the promotion
of uniformity (and thus commonality) via the harmonisation, and previously codification, of legal norms
undermines a pluralist perspective and also the potential to appreciate the dynamic nature and shifting
conceptualisations of private law.
These preliminary conclusions do not suggest that the building blocks of a European (legal) culture cannot
be identified; nor do they suggest that there exists no scope for them to emerge and be refined. Rather, these
conclusions are engaged and advanced to support the argument that there does not exist a basis upon which
a single legal culture or identity must be advanced as a prerequisite of legal development, to the exclusion
of the others existing within the European space. Indeed, it is possible that, in light of the future evolution
of private law, and Union law more broadly, a common culture might indeed emerge at the European level.
Private law has clearly developed beyond its role in simply regulating private relationships and in facili-
tating the functioning of the internal market; it has rather begun to ‘open itself up’ to values and interests
180 Hanne Peterson and others (eds), Paradoxes of European Legal Integration (Ashgate 2008) 4, making reference to four paradoxes
of European integration namely, constitutionalisation and democratisation, institution-building and market-making, language as
a source of legal understanding and misunderstanding and exceptionalism and normalisation.
181 In respect of the significance of boundaries, reference can be made to Lindahl, who conceives of a legal regime as one necessarily
defined by its borders but in respect of which there is a ‘permeability’, such that what is excluded is necessarily also included; Hans
Lindahl, ‘A-Legality – Postnationalism and the Question of Legal Boundaries’ (2010) 73 MLR 30, 55.
From Multiple Legal Cultures to One Legal Culture? Thinking About Culture,
Tradition and Identity in European Private Law Development
including those of a social, cultural and political nature.182 Notwithstanding, as it emerges at the European
level via Union legislation, and its interpretation in the CJEU and application in the national courts, private
law also continues to exist and develop within the Member States via the national legislature and national
courts, giving rise to the significance of the multi-level interdependency of the relations between legal
orders. This calls for a perspective of legal development, which allows for law beyond the State to be charac-
terised as that which is ‘neither national nor international nor public nor private at the same time as being
both national and international, as well as public and private’.183
Competing Interests
The author declares that they have no competing interests.
The author would like to acknowledge and thank The Leverhulme Trust, which has provided funding for the
postdoctoral position.
182 This is not to say that private law was entirely closed previously; rather, it is to suggest that the reconceptualisations of analytical
frameworks that derive from Europeanisation (and also transnationalisation) of private law call for the breaking down of barriers
that have previously been (artificially) constructed and permeated in respect of the relationship with private law with, for example,
public law, society and social values.
183 Craig Scott, ‘‘Transnational Law’ as Proto-Concept: Three Conceptions’ (2009) GLJ 859, 870 and 873. Indeed, perhaps as ‘a meth-
odological lens’ allowing for the analysis of legal institutions and legal development in a multi-level space, Peer Zumbansen,
‘Transnational Legal Pluralism’ (2010) 1 Transnational Legal Theory 141, 150.
Law 89
How to cite this article: Stephanie Law, ‘From Multiple Legal Cultures to One Legal Culture? Thinking About
Culture, Tradition and Identity in European Private Law Development’ (2015) 31(81) Utrecht Journal of International
and European Law 68, DOI:
Submitted: 29 April 2015 Accepted: 24 June 2015 Published: 14 August 2015
Copyright: © 2015 The Author(s). This is an open-access article distributed under the terms of the Creative
Commons Attribution 3.0 Unported License (CC-BY 3.0), which permits unrestricted use, distribution, and
reproduction in any medium, provided the original author and source are credited. See
Utrecht Journal of International and European Law
is a peer-reviewed open access
journal published by Ubiquity Press.

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